proportionality analysis in Oregon

2025Proportionality of Sentence Finally, defendant’s fourth assignment of error raises a proportionality challenge based on Article I, section 16, of the Oregon Constitution, and State v. Rodriguez/Buck, 347 Or 46 , 217 P3d 659 (2009).

2025Proportionality of Sentence Finally, defendant’s fourth assignment of error raises a proportionality challenge based on Article I, section 16, of the Oregon Constitution, and State v. Rodriguez/Buck, 347 Or 46 , 217 P3d 659 (2009).

2026The court explained that, in Ryan, it had recognized the legislature’s pronounce- ment on the age of criminal responsibility, ORS 161.290,3 as relevant to the proportionality analysis, “ ‘because it is objective evidence of a societal standard that eschews treat- ing persons with the attributes of a pre-teen child as if they were normally abled adult offenders.’ ” Gonzalez II, 373 Or at 259 (quoting Ryan, 361 Or at 624 ).

2020He stresses that, under State v. Rodriguez/ Buck, 347 Or 46 , 217 P3d 659 (2009), and Ryan, 361 Or 602 , a proper proportionality analysis requires broad consider- ation of any intellectual disability because any intellectual disability should reduce defendant’s culpability in relation to the penalty.

2023State v. Wheeler, 343 Or 652, 668 , 175 P3d 438 (2007); see Rodriguez/Buck, 347 Or at 58 (setting forth the proportionality analysis).

2023State v. Wheeler, 343 Or 652, 668 , 175 P3d 438 (2007); see Rodriguez/Buck, 347 Or at 58 (setting forth the proportionality analysis).

2009As for its case law construing the proportionality clause of Article I, section 16, the court explained that either of two formulations have been employed, one focused on whether the penalty for a given offense would “shock the moral sense of all reasonable people,” id. at 668 (citing State v. Rogers, 313 Or 356, 380 , 836 P2d 1308 (1992), cert den, 507 US 974 (1993)), and the other focused on whether the legislature’s assessment of the seriousness of a given offense and the appropriate penalty for that offense is “ ‘founded upon an arguably rational basis,’ ” Wheeler, 343 Or at 669 (quoting J

2009As for its case law construing the proportionality clause of Article I, section 16, the court explained that either of two formulations have been employed, one focused on whether the penalty for a given offense would “shock the moral sense of all reasonable people,” id. at 668 (citing State v. Rogers, 313 Or 356, 380 , 836 P2d 1308 (1992), cert den, 507 US 974 (1993)), and the other focused on whether the legislature’s assessment of the seriousness of a given offense and the appropriate penalty for that offense is “ ‘founded upon an arguably rational basis,’ ” Wheeler, 343 Or at 669 (quoting J

2025Nonetheless, defendant argues that mental ill- ness, like intellectual disability, reduces culpability because it, too, reduces the defendant’s ability “ ‘to understand and process information, to learn from experience, to engage in logical reasoning, [and] to control impulses.’ ” Ryan, 361 Or at 618 (speaking of intellectual disability (quoting Atkins, 536 US at 320 )).

2025Nonetheless, defendant argues that mental ill- ness, like intellectual disability, reduces culpability because it, too, reduces the defendant’s ability “ ‘to understand and process information, to learn from experience, to engage in logical reasoning, [and] to control impulses.’ ” Ryan, 361 Or at 618 (speaking of intellectual disability (quoting Atkins, 536 US at 320 )).

2019In Solem v. Helm , 463 U.S. 277 , 284, 103 S. Ct. 3001 , 77 L.Ed. 2d 637 (1983), the United States Supreme Court held that the cruel and unusual punishment clause of the Eighth Amendment prohibits "not only barbaric punishments, but also sentences that are disproportionate to the crime committed." Solem announced a proportionality analysis similar to Oregon's Rodriguez/Buck factors for reviewing a cruel and unusual punishment claim: (1) the gravity of the offense and the harshness of the penalty; (2) a comparison of the sentence imposed for more serious crimes in the same jurisdiction; and (3)

2019In Solem v. Helm , 463 U.S. 277 , 284, 103 S. Ct. 3001 , 77 L.Ed. 2d 637 (1983), the United States Supreme Court held that the cruel and unusual punishment clause of the Eighth Amendment prohibits "not only barbaric punishments, but also sentences that are disproportionate to the crime committed." Solem announced a proportionality analysis similar to Oregon's Rodriguez/Buck factors for reviewing a cruel and unusual punishment claim: (1) the gravity of the offense and the harshness of the penalty; (2) a comparison of the sentence imposed for more serious crimes in the same jurisdiction; and (3)

2009In Harmelin , for example, a majority of the Court upheld as against a proportionality challenge a sentence of life imprisonment for the offense of mere possession of cocaine, an offense that involved no violence and no significant injury to any other person. 501 US at 961, 996 .

2009In Harmelin , seven justices agreed that the Eighth Amendment contains a proportionality requirement, although they also disagreed about the scope of the requirement and its application in that case. 501 US at 997-98 (Kennedy, J., with whom O’Connor and Souter, JJ., joined, concurring in part and concurring in the judgment); id. at 1009-21 (White, J., with whom Blackmun and Stevens, JJ., joined, dissenting); id. at 1024-27 (Marshall, J., dissenting).

2025See, e.g., Pearson v. Ramos, 237 F3d 881, 886 (7th Cite as 340 Or App 716 (2025) 723 Cir 2001) (“Every disciplinary sanction, like every sentence, must be treated separately, not cumulatively, for purposes of determining whether it is cruel and unusual.”); U.S. v. Aiello, 864 F2d 257, 265 (2d Cir 1988) (“Eighth Amendment analysis focuses on the sentence imposed for each specific crime, not on the cumulative sentence.”); Patsalis v. Atty Gen of Ariz, 480 F Supp 3d 937, 956 (D Ariz 2020), aff’d, 47 F4th 1092 (9th Cir 2022), cert den, ___ US ___, 144 S Ct 107 (2023) (“This Court has found no cour

2025See, e.g., Pearson v. Ramos, 237 F3d 881, 886 (7th Cite as 340 Or App 716 (2025) 723 Cir 2001) (“Every disciplinary sanction, like every sentence, must be treated separately, not cumulatively, for purposes of determining whether it is cruel and unusual.”); U.S. v. Aiello, 864 F2d 257, 265 (2d Cir 1988) (“Eighth Amendment analysis focuses on the sentence imposed for each specific crime, not on the cumulative sentence.”); Patsalis v. Atty Gen of Ariz, 480 F Supp 3d 937, 956 (D Ariz 2020), aff’d, 47 F4th 1092 (9th Cir 2022), cert den, ___ US ___, 144 S Ct 107 (2023) (“This Court has found no cour

2025See, e.g., Pearson v. Ramos, 237 F3d 881, 886 (7th Cite as 340 Or App 716 (2025) 723 Cir 2001) (“Every disciplinary sanction, like every sentence, must be treated separately, not cumulatively, for purposes of determining whether it is cruel and unusual.”); U.S. v. Aiello, 864 F2d 257, 265 (2d Cir 1988) (“Eighth Amendment analysis focuses on the sentence imposed for each specific crime, not on the cumulative sentence.”); Patsalis v. Atty Gen of Ariz, 480 F Supp 3d 937, 956 (D Ariz 2020), aff’d, 47 F4th 1092 (9th Cir 2022), cert den, ___ US ___, 144 S Ct 107 (2023) (“This Court has found no cour

2025See, e.g., Pearson v. Ramos, 237 F3d 881, 886 (7th Cite as 340 Or App 716 (2025) 723 Cir 2001) (“Every disciplinary sanction, like every sentence, must be treated separately, not cumulatively, for purposes of determining whether it is cruel and unusual.”); U.S. v. Aiello, 864 F2d 257, 265 (2d Cir 1988) (“Eighth Amendment analysis focuses on the sentence imposed for each specific crime, not on the cumulative sentence.”); Patsalis v. Atty Gen of Ariz, 480 F Supp 3d 937, 956 (D Ariz 2020), aff’d, 47 F4th 1092 (9th Cir 2022), cert den, ___ US ___, 144 S Ct 107 (2023) (“This Court has found no cour

2024See 330 Or App at 51-52 (distinguishing between wrongful conduct that could be charged as a crime and wrongful conduct in a broader sense). 40 State v. Hernandez-Esteban repeated ongoing conduct, and vulnerable victims.” We now consider the proportionality issue on appeal.

2024See 330 Or App at 51-52 (distinguishing between wrongful conduct that could be charged as a crime and wrongful conduct in a broader sense). 40 State v. Hernandez-Esteban repeated ongoing conduct, and vulnerable victims.” We now consider the proportionality issue on appeal.

2024See State v. Parker, 259 Or App 547, 549 , 314 P3d 980 (2013), rev den, 355 Or 380 (2014) (conclud- ing that it was not appropriate to consider the defendant’s “aggregate or cumulative sentence of 119 months to deter- mine if his aggregate or cumulative sentence of 119 months is disproportionate to his 10 offenses”).

2018App. 547 , 549, 314 P.3d 980 (2013) ("Defendant does not provide, nor are we aware of, any authority requiring a proportionality analysis with regard to a defendant's aggregate sentence.").

2024The first and third Rodriguez/Buck factors “ ‘overlap’ when determining pro- portionality under a recidivism statute.” Carey-Martin, 293 Or App at 618 -19 (quoting State v. Althouse, 359 Or 668, 685 , 375 P3d 475 (2016)).

2016In Althouse , we rejected a proportionality challenge by a defendant who was sentenced under ORS 137.719(1) for public indecency, which we acknowledged could be viewed as “not as serious as some other sex crimes.” 359 Or at 687 .

2026Second, we presume that the legislature was aware of the line of sentencing cases described above, which make it clear that statutory sentences were subject to review for adherence to the proportionality requirement of Article I, section 16, and also that direct appeal had long been a path in Oregon for 220 State v. Fernandez obtaining that review. 375 Or at 217 (describing Cannon, 203 Or at 632-33 , and Shumway, 291 Or at 164 ); see Eggers, 372 Or at 800 (explaining that we assume the legislature is aware of relevant decisions published at the time of a stat- ute’s enactment).

2007Cannon in which this court has concluded that a sentence violated the proportionality provision is State v. Shumway, 291 Or 153 , 630 P2d 796 (1981), where the court addressed another variant of the question of when a potentially longer sentence for a crime of lesser seriousness may violate the proportionality requirement.

2026Second, we presume that the legislature was aware of the line of sentencing cases described above, which make it clear that statutory sentences were subject to review for adherence to the proportionality requirement of Article I, section 16, and also that direct appeal had long been a path in Oregon for 220 State v. Fernandez obtaining that review. 375 Or at 217 (describing Cannon, 203 Or at 632-33 , and Shumway, 291 Or at 164 ); see Eggers, 372 Or at 800 (explaining that we assume the legislature is aware of relevant decisions published at the time of a stat- ute’s enactment).

2009See, e.g., State v. Rogers, 313 Or 356, 379-80 , 836 P2d 1308 (1992) (analyzing a proportionality challenge as a cruel and unusual punishment claim); Cannon v. Gladden, 203 Or 629, 632 , 281 P2d 233 (1955) (quoting Sustar for the proposition that a proportionality challenge is a claim that the sentence is cruel and unusual with reference to its duration); State v. Coffman, 171 Or 166, 173 , 136 P2d 687 (1943) (analyzing a proportionality challenge as a cruel and unusual claim).

2007See id. at 577-78 (lead opinion) (stating that the morally shocking nature of some sentences may be self-evident); see also Meyrovich, 204 Or App at 392 (rejecting a proportionality challenge without referring to the Solem test).

2006Although there appears to be some disagreement as to the precise test to use in determining whether a sentence violates Article I, section 16, and whether the same test applies to both the “cruel and unusual” clause and the proportionality clause, see State v. Thorp, 166 Or App 564 , 2 P3d 903 (2000), rev dismissed, 332 Or 559 (2001), the irreducible core of our analysis is this: a sentence violates the proportionality requirement of Article I, section 16, only if it “is so disproportionate to the offense as to shock the moral sense of all reasonable persons as to what is right and proper.” St

2018Proportionality analysis therefore begins with a search for the rational basis of the legislative action. *648 Jensen v. Gladden , 231 Or. 141 , 146, 372 P.2d 183 (1962) ("It is the province of the legislature to establish the penalties for the violation of the various criminal statutes and if the penalties are founded upon an arguably rational basis we have no authority to hold that they are invalid."); see also State v. Isom , 313 Or. 391 , 400, 837 P.2d 491 (1992) ("The legislature has chosen to subject all such persons to the maximum potential penalty.

2018Proportionality analysis therefore begins with a search for the rational basis of the legislative action. *648 Jensen v. Gladden , 231 Or. 141 , 146, 372 P.2d 183 (1962) ("It is the province of the legislature to establish the penalties for the violation of the various criminal statutes and if the penalties are founded upon an arguably rational basis we have no authority to hold that they are invalid."); see also State v. Isom , 313 Or. 391 , 400, 837 P.2d 491 (1992) ("The legislature has chosen to subject all such persons to the maximum potential penalty.

1984Because defendant argued on appeal that the 30-year mandatory minimum sentence imposed violated the proportionality requirement of Article I, section 16, of the Oregon Constitution, we held this case pending the Supreme Court’s resolution of the proportionality issue, State v. Brown, 296 Or 458 , 676 P2d 877 (1984); State v. Turner, 296 Or 451 , 676 P2d 873 (1984); State v. Macy, 295 Or 738 , 671 P2d 92 (1983), even though it had not been raised below.

1984Because defendant argued on appeal that the 30-year mandatory minimum sentence imposed violated the proportionality requirement of Article I, section 16, of the Oregon Constitution, we held this case pending the Supreme Court’s resolution of the proportionality issue, State v. Brown, 296 Or 458 , 676 P2d 877 (1984); State v. Turner, 296 Or 451 , 676 P2d 873 (1984); State v. Macy, 295 Or 738 , 671 P2d 92 (1983), even though it had not been raised below.

2018Proportionality analysis therefore begins with a search for the rational basis of the legislative action. *648 Jensen v. Gladden , 231 Or. 141 , 146, 372 P.2d 183 (1962) ("It is the province of the legislature to establish the penalties for the violation of the various criminal statutes and if the penalties are founded upon an arguably rational basis we have no authority to hold that they are invalid."); see also State v. Isom , 313 Or. 391 , 400, 837 P.2d 491 (1992) ("The legislature has chosen to subject all such persons to the maximum potential penalty.

2018Proportionality analysis therefore begins with a search for the rational basis of the legislative action. *648 Jensen v. Gladden , 231 Or. 141 , 146, 372 P.2d 183 (1962) ("It is the province of the legislature to establish the penalties for the violation of the various criminal statutes and if the penalties are founded upon an arguably rational basis we have no authority to hold that they are invalid."); see also State v. Isom , 313 Or. 391 , 400, 837 P.2d 491 (1992) ("The legislature has chosen to subject all such persons to the maximum potential penalty.